IN THE CASE OF: 

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130013867 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of her date of rank (DOR) to chief warrant 
officer two (CW2) from 28 October 2011 to 31 March 2011 and to receive any back pay and allowances.

2.  The applicant states the officer's records section forwarded her complete promotion packet to the National Guard Bureau (NGB) on or about 1 March 2011 with an effective date for promotion of 31 March 2011.  In or about June 2011, her promotion packet was returned due to the unauthorized position she was assigned to during the July 2010-July 2011 mobilization.  Once she was transferred to an authorized position, the State issued new orders and resubmitted the promotion packet to NGB on 24 May 2011.  She contends the errors made by the officer personnel management section delayed her promotion packet and sent it back to scroll.  The error occurred through no fault of her own.

3.  The applicant provides:

* two DA Forms 71 (Oath of Office - Military Personnel)
* NGB Form 337 (Oaths of Office)
* State appointment orders 
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* exception to policy memorandum
* State promotion orders
* Federal recognition orders


CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Texas Army National Guard (TXARNG) in the rank of CW2.

2.  NGB Special Orders Number 103 AR, dated 24 April 2009, extended the applicant Federal recognition for her initial appointment to warrant officer one effective 31 March 2009.

3.  TXARNG Orders 145-1030, dated 25 May 2011, as amended, promoted her to CW2 with an effective date and date of rank of 31 March 2011.

4.  NGB Special Orders Number 276 AR, dated 31 October 2011, extended the applicant Federal recognition for promotion to CW2 effective 28 October 2011.

5.  In connection with the processing of this case, an advisory opinion was obtained from the NGB Personnel Policy Division.  This office recommended denial of the applicant's request and stated:

	a.  The applicant was eligible for promotion effective 31 March 2011.

	b.  Processing the applicant's promotion packet fell under new guidance established on 7 January 2011.

	c.  A warrant officer's (WO's) DOR will be used to establish the promotion eligibility date to the next higher grade.

	d.  Eligibility for promotion does not mean automatic promotion to the next higher grade.

	e.  WO's must go through the Federal recognition process and the promotion effective date is when the scroll is signed.

	f.  The scroll processing takes approximately 120 days from the date the promotion packet is received.

	g.  The State concurs with the recommendation.

6.  The advisory opinion was provided to the applicant for her information the opportunity to submit comments or a rebuttal.  She responded and stated:

	a.  Her request is based on the delay of her promotion packet encountered due to mobilization.
	b.  Upon being submitted on the manning document for the forward unit in Afghanistan, she was in a zero-authorized position and, therefore, NGB would not accept her packet.

	c.  The State then had to transfer her to an authorized position in the rear, request a waiver for her promotion, and then resubmit her packet.  The process took more than 4 months to complete which was out of her control.

	d.  She submitted her promotion packet to the State on 4 January 2011 in order to provide the most amount of time allowed for processing.

	e.  Her promotion packet was delayed because she was deployed and because she was not properly authorized on her unit's deployment documents.

7.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WO's in the ARNG is a function of the State.  As in original appointments, a WO promoted by State authority has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must satisfy the requirements for this promotion.  Promotions will be based on the Department of the Army proponent duty military occupational specialty certification via satisfactory completion or constructive credit of appropriate level of military education, time in grade, demonstrated technical and tactical competence, and potential for service in the next higher grade as determined by a Federal Recognition Board.

8.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states that ARNG WO's are initially appointed and are also promoted by the State or Territory to which the officer is assigned.  The Chief, NGB, reviews and approves those actions.  Title 10, U.S. Code, sections 571b and 12241b, introduced a requirement that all WO appointments and promotions to chief WO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's and promotion to higher grades, by warrant or commission, will be issued by the President (delegated to the Secretary of Defense).  Requests for appointment will be staffed through the Department of the Army Deputy Chief of Staff, G-1.  This requirement may add 90 days or more to the process for approval for appointments or promotions to be completed.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the TXARNG promoted her to CW2 with an effective date of 31 March 2011.

2.  While deployed, she augmented another unit’s deployment.  Per National Guard policy, she needed an exception to policy in order to be promoted.  This was the reason the NGB rejected her promotion packet submitted in January 2011.  Upon receiving an exception to policy in May 2011 from the NGB, the TXARNG resubmitted her promotion package and request for Federal Recognition.  These were processed in a timely fashion and she was granted Federal Recognition and promotion.  

3.  The evidence also shows NGB issued her Federal recognition orders promoting her to CW2 effective 28 October 2011.  This Federal Recognition and promotion required approval by the Secretary of Defense to occur.  As a result of the 2011 National Defense Authorization Act, the promotion of WO's is now issued by the President of the United States and is delegated to the Secretary of Defense.  

4.  The Army Board for Correction of Military Records may only correct Army records.  The decision by the Secretary of Defense to approve her promotion is not an Army record, but rather a Department of Defense record.  As such, the ABCMR is without authority to change the date on which the Secretary of Defense approved her promotion.  As such, the ABCMR has no authority to change the effective date of her promotion.  

5.  The Board could adjust the applicant’s DOR (as opposed to the effective date of promotion) if it found an egregious delay in the processing of her promotion unfairly impacted on her promotion.  However, it appears that her initial promotion packet was properly rejected, and her resubmitted promotion package was not unduly delayed.

6.  In view of the foregoing evidence and the change in the law, her effective date of promotion and DOR seem appropriate and reasonable; therefore, they should not be changed.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X_____________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130013867



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ABCMR Record of Proceedings (cont)                                         AR20130013867



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